On March 6, the Equal Employment Opportunity Commission (EEOC) issued guidance on a hot topic that has provoked an increasing number of religious discrimination claims in recent years: What is the employer’s duty to accommodate an employee’s religious dress and grooming practices?
What’s your policy?
Typically, banks have fairly conservative dress and grooming standards. Maintaining a professional image is paramount. While I have seen various interpretations of what “professional” means, I have yet to see a policy that positively embraces the following examples of religious garb and grooming cited by the EEOC:
• Muslim headscarf
• Sikh turban
• Christian cross
• Sikh uncut hair and beard
• Rastafarian dreadlocks
• Jewish sidelocks
Have you dealt with these or other requests for exceptions to your standard employee dress code and appearance policy yet? (Editor’s note: A separate issue is headgear worn by customers and other nonemployees who enter bank premises. For an ABA treatment of this topic, click here.)
What does the law say?
Title VII of the 1964 Civil Rights Act prohibits discrimination on the basis of religion, and requires employers to affirmatively accommodate the sincerely-held religious beliefs of employees, absent proof of “undue hardship.” The “undue hardship” test has not proven difficult to pass. The courts have deemed it met by evidence that the accommodation would entail an administrative cost, or pose a safety, health, or security concern. It is a much lower standard than the “undue burden” test associated with reasonable accommodations under the Americans with Disabilities Act (ADA).
However, banks will have a hard time making the safety, health, or security case, which often applies to restaurants or manufacturing firms. Customer preference or fear of customer reaction to a particular religion or religious practice does not qualify as an undue hardship. The EEOC guidance also makes clear that the practice of “back-rooming” employees—that is, permitting them to dress as they wish, but keeping them out of sight of customers—constitutes workplace segregation, which is also a violation of Title VII.
The threshold inquiry: “sincerely held belief”
EEOC takes the position that, even if the religious belief is not held as part of any formal church or sect, is practiced by very few people, or seems illogical, it may be sincerely held. Religious practices that have been only recently adopted, or followed only during certain times (such as a religious holiday) are also protected, as are, in EEOC’s view, "non-theistic moral or ethical beliefs as to what is right or wrong," if "sincerely held with the strength of traditional religious views."
With this broad definition, the bank would be wise not to deny a request for an accommodation on the grounds that the employee is not motivated by a sincerely held religious belief, at least, without advice from legal counsel.
Is a request for accommodation needed?
Short answer: No.
EEOC emphasizes that no “magic words” are needed to put an employer on notice that an exception may be needed to a dress and grooming policy. If the bank is aware, for example, that an employee wears a beard for religious reasons, it may be obligated to provide a reasonable accommodation, even if the employee does not formally request one.
Crossing the line to “proselytizing”
Accommodating religious attire or grooming practices is usually as simple as just allowing an exception to the bank’s standard policy. But not all forms of religious expression are protected.
The bank must strike a balance between its duty to accommodate employees’ sincerely held religious beliefs and its duty to protect other employees against harassment. Every case is different, and hard-and-fast rules are inappropriate.
In a recent case, a court held that the employer was not required to accommodate the plaintiff’s religion by permitting her to distribute religious pamphlets to other employees.
In a closer case, however, an employer’s motion for summary judgment was denied where it had terminated employees for repeatedly greeting customers with “God bless you” and “Praise the Lord.” The court there concluded that a jury needed to resolve the undue hardship question.
Practice pointers for your bank
As I’ve said before in this space, the best way to head off claims is training. Make sure managers know the law on religious discrimination, and can recognize a religious accommodation situation when they see it.
Here are some other tips:
• Structure the reasoning process. Because religious accommodation claims are very fact-specific, set up a process for analyzing a situation before one arises. What questions would you ask an employee who wants a religious accommodation?
• Review your dress code. Is it out-of-date? (i.e. written for the “Mad Men” workplace of three-piece suits and seamed stockings.) Is it gender-neutral? (Many policies I’ve seen are pretty heavy-handed towards females.)
• And don’t forget the training!
And in other news . . .
EEOC has had a busy month.
As well as the guidance on religious garb and grooming discussed here, the agency has joined forces with the Federal Trade Commission (FTC) to issue two short guides, Background Checks: What Employers Need to Know and Background Checks: What Job Applicants and Employees Should Know, explaining the rights and responsibilities of both employers and employees.
As you might expect, the guidance is weighted towards the rights of employees and the responsibilities of employers.
I’ll be presenting a webinar for banks on background checks and other information gathering issues on April 22. For more information, click here.